On 18 October 2018 the WA Attorney General, Mr J.R. Quigley, introduced the Sentence Administration Amendment (Multiple Murderers) Bill 2018 (the Bill) into the Legislative Assembly. The Bill aims to establish a scheme of Ministerial directions by which a Minister may direct that a "designated prisoner', who is a convicted "mass murderer or serial killer", must not be considered for any parole or re-socialisation programmes. The WA Government sees the Bill as delivering on a key election commitment to help limit trauma to the survivors of crime as well as the family and friends of murder victims.
In his second reading speech speaking to the purpose of the Bill, the Attorney-General said:
In regard to the purpose of the Bill, the Attorney-General pointed out that the proposed reforms are intended to "go some way" to address the trauma and emotional toll experienced by “secondary victims” (family and friends) and others, including the surviving victims of serial killers and mass murderers. The Attorney-General described the parole process as a source of significant stress. coming from the anticipation that these offenders may return to the community, the re-traumatisation from being periodically asked to share one’s views about the potential release of the offender, and the heightened and often unwanted media and public attention associated with these cases. Because of this the Attorney-General indicated in his speech that allowing a Minister to direct that a mass murderer or serial killer must not be considered for parole or a resocialisation program for a period of up to six years, ". . . it is hoped that this Bill will moderate one driver of stress for secondary victims and survivors".
Designated prisoner and relevant offence: The Bill creates two new concepts, namely a "designated prisoner” and “relevant offence” so as to be able to prescribe mass murderers and serial killers as those to whom a ministerial direction may apply. The two definitions cover prisoners serving life or indefinite imprisonment or prisoners who are "Governor’s pleasure" detainees as listed under schedule 3 of the SA Act . To come within the definitions a prisoner must be serving a sentence for at least one conviction for a relevant offence - this includes the WA offence of murder, the former offence of wilful murder, as well as similar offences when committed elsewhere, including any place outside Australia. Additionally a prisoner must have been convicted of two or more other relevant offences that were committed at any time, or have been convicted of another relevant offence, and that offence must have been committed on a different day from the first relevant offence. As such, ministerial directions can only be made regarding mass murderers, being someone who has killed three or more people on one day; and serial killers, being someone who has killed two or more people on different days. The issue of consideration for a resocialisation program and periodic parole review arises only in relation to schedule 3 prisoners. It is thus not necessary to extend the scheme to other classes of prisoners.
When direction can be made: Under the reforms proposed by the Bill the minister is empowered to make a direction following the receipt of a designated prisoner’s relevant report, which is defined to be the first statutory report for parole consideration - a necessary step to avoid any potential interference with the minimum non-parole period set by a sentencing court and minimising the risk of constitutional challenge to the making of a direction.
Status of direction: The proposed "ministerial directions" are not compulsory, nor are they automated and the minister has absolute discretion about whether to make a direction relating to a designated prisoner. Further, in line with the operation of the current SA Act, the decision is not subject to natural justice or any requirements for procedural fairness. The amendments made by the Bill also provide that a direction cannot be challenged, appealed or reviewed in any court, except on the basis of jurisdictional error.
Direction requirements and duration: Directions are required to be in writing and must specify "start" and "end" dates of no more than six years apart and copies must be provided to the Parole Board, the chief executive officer of the Department of Corrective Services and the prisoner concerned. During the period a direction has effect, the Parole Board and the chief executive officer of the Department of Corrective Services will be prevented from undertaking any assessment, consideration or reporting functions of parole or a resocialisation program for the designated prisoner.
Renewal of direction: The Bill provides that a direction may be renewed three months prior to when it is due to expire and no limits apply to the number of successive directions that can be made. The proposed reforms maintain the minister’s capacity to request a report about a designated prisoner or for the Parole Board to provide a report under section 12 of the SA Act . Although the intent is that the mechanism for reporting under section 12 is not be used in the period that a direction is in place, the retention of this ability removes the need to include special provisions for the revocation of a direction and allows for any exceptional circumstances in which parole may need to be considered or when a new minister comes in and has a different view about an already issued direction.
Expiry of direction: Where a further direction is not made at the expiry of a direction the Bill provides that, the statutory reporting functions under section 12A resume. The due dates for future reports are calculated as if all previous reports had been completed at the times prescribed by the legislation. The amendments proposed by the Bill include the capacity for a report to be deferred past the due date, provided it is given to the minister as soon as practicable; and, in any event, within seven months, ensuring that the Parole Board has sufficient time to prepare and comply with the statutory reporting requirements. Further, at the expiry of a direction, the suspension on the consideration for a re-socialisation program is also lifted.
According to the Attorney-General, the Bill and the amendments it introduces:
The Bill has now reached second reading stage in the Legislative Council (7 November 2018) and as yet no amendments have been tabled.
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Sentence Administration Amendment (Multiple Murderers) Bill 2018 (101 of 2018) [WA] and second reading speech and explanatory memorandum as reported in the TimeBase LawOne Service.
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